The New Mexico Supreme Court has overturned the murder conviction of Truett Thomas based on a lower court’s violation of the defendant’s 6th Amendment rights for allowing a key witness to testify via Skype. Can you imagine being on trial for murder and a key witness testifying against you only appears via Skype?
Truett was convicted of murder based off DNA evidence found to be on both the victim and the murder weapon. The witness who testified via Skype was the sole forensic scientist that worked on the evidence from which the DNA profile was pulled—that profile ultimately matched Truett. Prior to the start of Truett’s trial, the forensic analyst moved out of state and was unavailable to testify due to personal inconvenience; instead, she was permitted to testify via Skype.
Although a computer image of the witness faced the jury, the witness herself was only able to see the image of the attorney questioning her and could not see the Defendant, the jury, or the judge. She was not the State’s only witness, but the forensic scientist was the only one who had worked on the DNA profile, which happened to be the State’s sole piece of evidence used for charging Truett.
The New Mexico Supreme Court didn’t specifically address the issue of whether or not the two-way Skype testimony was a violation in and of itself, but rather Truett’s 6th Amendment rights were violated in the State’s failure to take the necessary steps that would allow for a substitute for a face-to-face confrontation. As technology advances, should courts head in the same direction?
Standard Must Be Met Before a Substitute Can Be Used
“In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”
The purpose of the 6th Amendment right to confront a witness is to ensure a witness’ reliability. Reliability is established that the right is honored by:
- a witness’ physical presence at trial,
- the oath a witness gives at trial,
- the ability for opposing counsel to cross examine the witness, and
- the ability for the trier of fact to observe the witness’ demeanor.
The ability to have face-to-face confrontation is not absolute and, in the past, substitute forms of testimony have been permitted, but only if the confrontation right can still be honored and those substitutions are not given out lightly.
In Truett’s case, the witness was unavailable only because returning to New Mexico for the trial was a personal inconvenience. In Maryland v. Craig, the U.S. Supreme Court case that set the first standard, a witness was permitted to testify in a separate room via one-way closed-circuit television because the witness was a child and a victim of abuse. Those are obviously two entirely different ends of the spectrum in terms of unavailability.
It’s No Longer Enough to Establish Witness Reliability
In Crawford v. Washington, the U.S. Supreme Court established a new precedent. Face-to-face confrontation of an accusatory witness can only be denied:
- when that denial is based upon a factual finding of necessity to further an important public policy, and
- when the reliability of the testimony is otherwise assured via an administration of oath, an opportunity for cross-examination, and an allowance of witness demeanor by the trier of fact.
Taking it again a step further, the U.S. Supreme Court previously held testimonial witness testimony can only be admitted at trial if the witness was unavailable for trial and the defendant had a prior opportunity to cross-examine the witness.
Here, in Truett’s case, the Court found no evidence of necessity to further an important public policy. There was no evidentiary hearing conducted on the matter, and an inconvenience, alone, to the witness is not enough to establish legal grounds for unavailability.
Changing Technology Shouldn’t Always Mean a Change in Procedure
That leaves the begging question—should courts be able to use Skype testimony as evidence in a trial in lieu of in-person face-to-face testimony? There’s definitely something to be said about being on the witness stand at trial. Being in a full court room, under oath, and in the presence of a jury is entirely different than being alone in a room and having to simply face the former virtually.
The Supreme Court has previously rejected an amendment to the Federal Rules of Criminal Procedure, which would have allowed witnesses to testify via two-way video, but as Justices change in the Court, so to could their position on the subject. It’s a risky line to draw to allow room for exceptions to the face-to-face confrontation rule, especially with ever-changing technology, but it does serve a purpose when witnesses are legitimately unavailable (or in cases like Craig).
There needs to be room for exceptions for those circumstances that truly warrant one because, otherwise, cases could be forced to remain stagnant if key witnesses are perpetually unavailable to testify in person. However, it should remain an exception and not the rule.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law